Citation Nr: 1802605 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-13 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for bladder cancer, including as due to herbicides and diesel fuel exposure. REPRESENTATION Appellant represented by: Nicholas Parisi, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to October 1967, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In August 2011 the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a letter dated in October 2017, the Veteran was notified that the VLJ who conducted the August 2011 Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. The Veteran was given 30 days to respond. As no response was received, the Board assumes that the Veteran does not desire another Board hearing. In May 2015, the Board issued a decision denying the service connection claim for a bladder cancer on the merits. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court) and, in a March 2017 Memorandum Decision, the Court vacated and remanded the Board's decision for further review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The March 2017 Court Memorandum Decision concluded that the Board's May 2015 decision denying entitlement to service connection for a bladder cancer, to include as secondary to exposure to herbicides in Vietnam as well as to diesel fuel and exhaust fumes, relied upon incomplete VA examination opinions to reject the theory of service connection based on in-service exposure to herbicides, diesel fuel, and exhaust fumes. The Court specifically found that the VA examination reports and October 2014 VHA expert opinion did not specifically address the question of whether the Veteran's exposure to herbicides, diesel fuel, and exhaust fumes together was a contributing factor to his bladder cancer. The Court also found that the opinions of record did not address whether any or all of the Veteran's in-service exposures were contributing factors in his development of bladder cancer. Therefore, the Board finds that the Veteran should be provided an additional VA examination concerning the claim for service connection for bladder cancer, and an opinion that will remedy the deficiencies noted by the Court in the March 2017 memorandum decision must be provided. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran's complete claims file to be sent to a medical doctor with a specialty in oncology. The examiner must review the claims file, to include all private and VA medical opinions of record, lay statements, and medical literature submitted by the Veteran, and must note that review in the report. A complete rationale for any opinion expressed must be provided. If further examination of the Veteran is found to be necessary to answer the questions asked, such must be scheduled. The examiner must provide a well-reasoned response to the following and is asked to note that the Veteran's exposure to herbicide agents, diesel fuel, and exhaust fumes in service has been conceded. a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's combined exposure to herbicides, diesel fuel, and exhaust fumes caused the development of his bladder cancer? b) Is it at least as likely as not that the Veteran's exposure to herbicides, diesel fuel, or exhaust fumes-either singly or in combination-was a contributing factor to his development of bladder cancer? 2. Then, readjudicate the claim with consideration of the requested VA examination report and any new evidence submitted by the Veteran. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).